of the warrant, is detained therein, or when necessary for his own liberation.

Same as sec. 174, p. 80.

§ 871. The magistrate must insert a direction in the warrant, that it be served in the day time, unless the affidavits be positive that the property is on the person, or in the place to be searched; in which case, he may insert a direction, that it be served at any time of the

day or night.

This section is substantially the same as 2 R. S. 3d ed. 831, sec. 31. In Liv. Crim. Code, 483, Rule 5, it is provided that a search warrant can only be issued in the day time. Exceptions to this rule may well exist, and they are provided for in this section.

§872. A search warrant must be executed, and returned to the magistrate by whom it was issued, if issued in the city and county of New-York, within five days after its date, and if in any other county, within ten days. After the expiration of those times respectively, the warrant, unless executed, is void.

A search warrant is always called for by some sudden exigency. This section seems proper, to prevent its execution at a time when the necessity for it does not exist.

§ 873. When the officer takes property under the warrant, he must give a receipt for the property taken, (specifying it in detail,) to the person from whom it was taken by him, or in whose possession it was found, or,

in the absence of any person, he must leave it in the place where he found the property.

Taken substantially from Liv. Crim. Code, 483, Rule 10.

§ 874. When the property is delivered to the magistrate, he must, if it was stolen or embezzled, dispose of it as provided in sections 755 to 757, both inclusive. If it were taken on a warrant issued on the grounds stated in the second and third subdivisions of section 862, he must retain it in his possession, subject to the order of the court to which he is required to return the proceedings before him, or of any other court in which the of fence, in respect to which the property was taken, is triable.

§ 875. The officer must forthwith return the warrant to the magistrate, and deliver to him a written inventory of the property taken, made publicly, or in the presence of the person from whose possession it was taken and of the applicant for the warrant, if they be present; verified by the affidavit of the officer, and taken before the magistrate, to the following effect: "I, A. B., the officer by whom this warrant was executed do swear that the above inventory contains a true and detailed account of all the property taken by me on the warrant."

§ 876. The magistrate must thereupon, if required, deliver a copy of the inventory to the person from whose possession the property was taken, and to the applicant for the warrant.

The last three sections are in conformity with Liv. Crim. Code, 482, Rule 9.

§ 877. If the grounds on which the warrant was issued be controverted, the magistrate must proceed to take testimony in relation thereto.

§ 878. The testimony given by each witness must be reduced to writing and authenticated in the manner prescribed in section 203.

The examination provided in the last two sections, is designed to enable the magistrate to determine the proper disposition of the property. It is but right, therefore, that it should be taken in such a form as to protect the rights of the parties. For the manner of taking the testimony prescribed in this section, see sec. 203, p. 95.

§ 879. If it appear that the property taken is not the same as that described in the warrant, or that there is no probable cause for believing the existence of the grounds on which the warrant was issued, the magistrate must cause it to be restored to the person from whom it was taken.

§ 880. The magistrate must annex together the depositions, the search warrant and return, and the inventory, and return them to the next court of sessions of the county, or city court, having power to inquire into the offence in respect to which the search warrant was issued, by the intervention of a grand jury, at or before its opening on the first day.

§ 881. A person, who, maliciously and without probable cause, procures a search warrant to be issued and executed, is guilty of a misdemeanor.

§ 882. A peace officer, who, in executing a search warrant, wilfully exceeds his authority, or exercises it with unnecessary severity, is guilty of a misdemeanor.

No greater invasion of the rights of the citizen can be conceived, than the malicious procurement or oppressive execution of a search warrant. The only remedy provided by the law, in this case, is a civil action. The Commissioners deem it just and proper to protect the rights of the citizen, by making the invasion of them in either of these respects a criminal offence.

§ 853. When a person charged with a felony, is supposed by the magistrate before whom he is brought, to have upon his person a dangerous weapon, or any thing which may be used as evidence of the commission of the offence, the magistrate may direct him to be searched in his presence, and the weapon or other thing to be retained, subject to his order or the order of the court in which the defendant may be tried.

The principle of this section has been already explained in the note to section 862, p. 392, 393.

TITLE III.

OF THE OUTLAWRY OF PERSONS CONVICTED OF TREASON.

SECTION 884. When application for outlawry may be made. 885. On what proof to be made.

886. Order that the defendant appear to receive judgment, or be outlaw

888. Judgment on appearance of defendant, or on his not appearing. 889. Effect of the judgment.

890. Filing judgment roll, and transcripts thereof.

891. Judgment roll, of what to consist.

892. Appeal may be at any time taken, by defendant, from judgment. 893. Appeal, how taken, and proceedings thereon.

894. Effect of reversal.

895. Defendant may be arrested to receive judgment, notwithstanding

outlawry.

896. No other proceeding for outlawry in criminal cases, allowed.

§ 884. When, upon a bench warrant issued for the apprehension of a person who has pleaded guilty, or against whom a verdict has been rendered, upon an indictment for treason, it is duly returned that the defendant cannot be found, the district attorney of the county may apply to the court in which the conviction was had, for judgment of outlawry.

Substantially the same as 2 R. S., 3d ed., 829, sec. 14.

§ 885. The application must be founded upon the return of the bench warrant, and upon proof, by affidavit, that the defendant has escaped, and on diligent search cannot be found within the county.

Substantially the same as 2 R. S. 3d ed. 829, sec. 15.

§ 886. The court, upon being satisfied that the defendant has escaped, and cannot, upon diligent search, be [CRIM. CODE.

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